SZIHN v Minister for Immigration - [2006] FMCA 784

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIHN & ANOR v MINISTER FOR IMMIGRATION

[2006] FMCA 784

MIGRATION – VISA – application for review of delegate’s decision – where Applicants did not apply for review by the Refugee Review Tribunal.

PRACTICE & PROCEDURE – Jurisdiction – primary decision – Federal Magistrates Court has no jurisdiction to review a primary decision.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.66, 412, 476

First Applicant:

SZIHN

Second Applicant:

SZIHO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File number:

SYG 406 of 2006

Judgment of:

Scarlett FM

Hearing date:

24 May 2006

Delivered at:

Sydney

Delivered on:

24 May 2006

REPRESENTATION

The Applicant:

No Appearance

Solicitor for the Respondent:

Mr Markus

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application for Adjournment is refused.
The Application is dismissed.
The Applicant is to pay the costs to the Respondent Minister fixed in the sum of $1,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 406 of 2006

SZIHN

First Applicant

And

SZIHO

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before the Court is an application under the Migration Act filed on 8^th February 2006. It is an application for review of a decision of a delegate of the Minister made on 6^th January 2006. The Respondent seeks an order that the application should be dismissed pursuant to Rule 44.21 of the Federal Magistrates Court Rules, on the basis that under Rule 44.06(2)(a) the decision is a primary decision as defined by subsection 476(6) of the Migration Act and pursuant to subsection (1) of that section the Court does not have any jurisdiction.
The Applicant, as I said, filed his application on 8^th February, although I note that it is dated 23^rd January 2006. There is also an affidavit annexing a copy of the delegate's decision, which was affirmed and, by the look of it, was affirmed before a Justice of the Peace in the Court House at Griffith on 3^rd February 2006.
The dates are relevant in that there is a written application for an adjournment because the Applicant has not attended. The matter first came before the Court on 1^st May 2006. The Applicant appeared, not legally represented. Unfortunately, he required an interpreter in the Gujarati language, and such an interpreter was not available.
Notwithstanding the challenge to the jurisdiction to the Court, I took the view that the application should be adjourned and a hearing date set so that provision could be made for an interpreter in the Gujarati language as the Applicant was not legally represented. Because he was not challenging a decision of the Refugee Review Tribunal but rather a decision of the delegate of the Minister, he was not, therefore, eligible for legal advice from a solicitor on the legal advice panel.
I listed the application for Final Hearing at 11:45am, today, 24^th May 2006. I ordered a Gujarati interpreter, and such an interpreter, in fact, appeared at the appointed time. There has been faxed to the Court a document dated today headed "Application for an adjournment". The lawyers for the Minister have received a copy of that document and its annexures and oppose the adjournment.
In my view, it is inappropriate to adjourn the proceedings. The application for an adjournment is set out in numbered paragraphs, and I will read some paragraphs on to the record:
1)I am the principal applicant in this proceeding.
2)My wife is seriously sick and is under medical treatment. She broke her leg a few days ago and needs my care as there is no-one at the moment to care her. Medical documents are attached with this application.
3)At the top of that, I live in Griffith, which is more than 600 kilometres from Sydney. Coming to the hearing today means leaving my wife alone without care.
4)I therefore seek an adjournment of the hearing today. I do apologise for any inconvenience I caused.
5)However, if the Court thinks it appropriate, then it can proceed in my absence if the decision is favourable to me. I note that I submitted an affidavit to the Court on previous occasion.
It is signed by the Applicant, or it purports to be signed by the Applicant, and I note that the signature is identical to one of the signatures on the original application filed on 8^th February and is similar to the signature on the affidavit affirmed on 3^rd February 2006. I am satisfied that that signature is, in fact, the signature of the First Applicant, SZIHN.
The Second Applicant, his wife, SZIHO, is quite clearly the lady who has suffered an injury.
Annexed to the application are four pages of medical documents. The most important document is a letter from Dr Baha Ali, of the Lakeside Medical Centre in Finley. The letter is a referral presumably to an orthopaedic surgeon relating to the Second Applicant, SZIHO. The document is dated 8^th May 2006, and it quite clearly refers to the lady, aged 28 years:
For ongoing care for her left leg compound fracture on 31 January 2006 in Cobram, Victoria.
Contrary to the First Applicant's claim that his wife broke her leg "a few days ago", it is clear from Dr Ali's letter that the lady concerned broke her leg on 31^st January. The letter also shows that surgical procedures were conducted on 23^rd February 2006 and, of course, his letter is dated 8^th May 2006.
The fact is that the Second Applicant appears on the evidence provided by the Applicant to have broken her leg not a few days ago, but, indeed, two days before she signed the application for an order of review, or the application under the Migration Act, which was dated 23^rd January, and more than a week before the application was filed at this Court. Her condition was well and truly known to the First Applicant, SZIHN, when he appeared in person before me on 1^st May 2006. I note that there was no mention made of any injury suffered by the Second Applicant or any suggestion that the First Applicant was not able to attend Court because he had to care for his wife. He certainly managed to come to Court from Griffith on 1^st May 20006.
I note that the Applicant consents to the Court hearing the matter in his absence but only if the decision is favourable to him. I do not propose to avail myself of that offer. I refuse the application for an adjournment as the grounds given are totally spurious. The First Applicant, in paragraph 2 of his application, has quite clearly attempted to mislead the Court. The application for an adjournment is refused.
I will deal with the application now. It is an application to review a decision of the delegate of the Minister, claiming that the notification was infected by jurisdictional error on the basis that the Applicant was granted a bridging visa (Class WA), without permission to work. It is quite clear that a defect in notification does not go to validity of a decision. That is made quite clear by subsection 66(4) of the Migration Act, and in any event, whether or not an unsuccessful applicant was granted a bridging visa without permission to work does not go to notification. There is no reason why the decision is not a valid decision, and, indeed, it is a primary decision.
Because it is a primary decision, the Federal Magistrates Court does not have jurisdiction to hear the application. I propose to dismiss the application because the Court has no jurisdiction to hear it. The application is dismissed.
This is an appropriate matter for an order for costs in favour of the Respondent Minister.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 31 May 2006